U.S. Department of Justice Office of Justice Programs Drug Courts Program Office Drug Court Resource Series
Practical Guide for Applying Federal Confidentiality Laws to Drug Court Operations
Prepared by the Drug Court Clearinghouse and Technical Assistance Project American University Funded by the Drug Courts Program Office, Office of Justice Programs, U.S. Department of Justice U.S. Department of Justice Office of Justice Programs 810 Seventh Street, N.W. Washington, D.C. 20531 Janet Reno Attorney General U.S. Department of Justice Raymond C. Fisher Associate Attorney General Laurie Robinson Assistant Attorney General Noel Brennan Deputy Assistant Attorney General Marilyn Roberts Director, Drug Courts Program Office Office of Justice Programs World Wide Web Homepage: http://www.ojp.usdoj.gov Department of Justice Response Center 1-800-421-6770 Practical Guide for Applying Federal Confidentiality Laws to Drug Court Operations Prepared by: S. Rebecca Holland
The Office of Justice Programs Drug Court Clearinghouse and Technical Assistance Project (DCCTAP) at American University, sponsored by the Drug Courts Program Office of the Office of Justice Programs, U.S. Department of Justice, compiles operational and evaluative information on adult, juvenile, and family drug court programs throughout the United States. Summary reports of drug court activities are published and updated periodically by the DCCTAP, reflecting current developments, emerging issues, experiences reported by local drug court officials and staff observations during the course of providing technical assistance to local jurisdictions. This report addresses issues regarding the confidentiality of drug treatment records that are commonly encountered in the course of drug court program operations. This report was prepared by the Office of Justice Programs Drug Court Clearinghouse and Technical Assistance Project at American University, Washington, DC. This project is supported by Grant No. 95-DC-MX-K002 awarded by the Drug Courts Program Office, Office of Justice Programs, U.S. Department of Justice. Points of view or opinions in this document are those of the authors and do not necessarily represent the official position or policies of the U.S. Department of Justice.
Table of Contents
Foreword I. Introduction II. General Rules Regarding Confidentiality of Treatment Information III. Client Consent Forms IV. Redisclosures of Information for Criminal Justice Referrals V. Maintenance of Written Files VI. Redisclosures in General VII. Consent of Minors VIII. Toxicology Results IX. Subpoenas and Court Orders A. General B. Court Orders: Criminal Investigations or Prosecutions of Treatment Participants C. Court Orders: Noncriminal Purposes X. Other Exceptions to the General Rule A. Child Abuse and Neglect Reporting B. Qualified Service Organizations C. Medical Emergency D. Research E. Audit and Evaluation F. Information That Does Not Identify the Clients G. Internal Communications H. Crime on Program Premises or Against Program Personnel I. Veterans’ Administration or Armed Forces Records J. Integrated Information Systems APPENDICES Appendix A: Sample Consent for Disclosure of Confidential Substance Abuse Treatment Information: Drug Court Referral Appendix B: Sample Qualified Service Organization Agreement (QSOA) Appendix C: Frequently Asked Questions About Substance Abuse Treatment Confidentiality and the Criminal Justice System
Foreword
The close working collaboration of treatment providers and judicial system officials that has developed with the emergence of drug court programs has also raised significant issues regarding the scope and limitations of the confidentiality protections afforded under Federal and State laws to participants in drug treatment programs. To whom do these statutes and regulations apply? Can these protections be waived by the participant? If so, for what purposes? under what conditions? what circumstances? What limitations apply to these waivers in terms of how this information can be used and the individuals to whom it can be communicated? To begin to address these issues, the Office of Justice Programs (OJP) Drug Court Clearinghouse and Technical Assistance Project (DCCTAP) at American University asked S. Rebecca Holland, legal director for the Osborne Association, Brooklyn, New York, to prepare an overview of the application of Federal regulations regarding the confidentiality of substance abuse treatment records to common drug court situations. The groundwork for this publication was developed when Ms. Holland was special counsel for policy at TASC, Inc., of Illinois, and she thanks the administration of TASC for their support. The overview presented in this document provides basic orientation for drug court officials regarding Federal confidentiality statutes and related provisions. More detailed discussion of relevant confidentiality issues and professional ethics issues will be published later this year in a report series by the National Drug Court Institute (NDCI) under the sponsorship of the Office of National Drug Control Policy (ONDCP), through funding transferred to the Drug Courts Program Office of the Office of Justice Programs, U.S. Department of Justice. See first document: Excerpts from a Treatise on Ethics and Confidentiality in Drug Courts: Federal Confidentiality Laws and How They Effect Drug Courts, by the National Drug Court Institute. Appendices A and B show sample forms that adapt principles discussed in this report to operating drug court programs. Additional sample forms are available through the OJP Drug Court Clearinghouse at American University (www.american.edu/justice). Appendix C presents some frequently asked questions with responses. We encourage readers of this report to submit additional questions as they emerge, so that they can be addressed in subsequent publications on this topic. Caroline S. Cooper, Director OJP Drug Court Clearinghouse and Technical Assistance Project American University Washington, DC 20016-8159 May 1999
I. Introduction
Because drug court programs are integrally involved with supervising the participation of drug offenders in substance abuse treatment, the programs must take into account Federal requirements, as well as applicable State laws, that govern the confidentiality of client records of substance abuse treatment and the use of this information. These requirements must be built into the daily operations of the drug court—regardless of whether the court functions in the adult criminal justice system, the juvenile delinquency system, or the dependency/abuse and neglect system. Drug court planning teams should be familiar with relevant Federal and State laws and regulations in order to develop appropriate policies and procedures. Under Federal law, information regarding substance abuse treatment is protected by the provisions of 42 United States Code (USC) Section 290dd-2, and the regulations implementing